DATE: 20040901

DOCKET: C40258

COURT OF APPEAL FOR ONTARIO

RE:

136871 ONTARIO INC. and SHIRAZ ISMAIL (Applicants) (Respondents) – and – TRIPLE PIZZA (HOLDINGS) INC., 3 FOR 1 PIZZA AND WINGS (CANADA) INC., TRIPLE HOLDINGS INC., TRIPLE 3 HOLDINGS INC., REZA SOLHI and FARZAD BAGHERZADEH (Respondents) (Appellants)

BEFORE:

LABROSSE, MACPHERSON and CRONK JJ.A.

COUNSEL:

John W. Chidley-Hill

for the appellant

Shiraz Ismail

the respondent in person

HEARD & ENDORSED:

August 31, 2004

On appeal from the judgment of Justice Romain W. M Pitt of the Superior Court of Justice dated May 29, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellants appeal the judgment of Justice Romain Pitt dated May 29, 2003 declaring that the respondents had properly rescinded a franchise agreement pursuant to s. 6 of the Arthur Wishart Act (Franchise Disclosure) 2000, S.O. 2003, c. 3. The application judge also declared that all documents related to the franchise agreement, including general security agreements, subleases, mortgages, promissory notes, guarantees and indemnities, were rescinded. The application judge also ordered the return of a $35,000 deposit paid by the respondents.

[2] The appellants submit that the respondents did not close the transaction and accordingly never became “franchisees” as defined in the Act. We disagree. All of the documents necessary to complete the transaction were executed and delivered to the appellants. Moreover, in so far as the respondents’ obligations were concerned, the full purchase price had been paid. We agree with the application judge: “[T]he subject transaction was closed in the sense that the vendor received the deposit and the debt instrument that secured the balance of the vendor take back loan”. See also: Bekah v. 3 for 1 Pizza & Wings (Canada) Inc., [2003] O.J. No. 4002 (S.C.J.).

[3] The appellants contend that the application judge improperly pierced the corporate veils of the corporate appellants in order to render them all liable to the appellants. We disagree. The various corporate appellants were essentially a single entity: see MAA Diners Inc. v. 3 for 1 Pizza & Wings Canada Inc., [2004] O.J. No. 297 (C.A.).

[4] There are no issues with respect to disclosure or the validity of the respondents’ rescission.

[5] The appeal is dismissed with costs fixed at $2,000, inclusive of disbursements and GST.